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Defining Latent Defects:
Intrinsic or Extrinsic Concerns
Last Updated: September 04 2026
Question: In an Ontario real estate purchase, how do I know if a disclosed issue is a latent defect versus a patent defect?
Answer: In Ontario, a latent defect is a fault or dangerous condition that is not readily apparent during a routine inspection, unlike a patent defect which a buyer could discover with ordinary vigilance during viewing due diligence Latent defects often involve hidden structural problems and can also include certain external or neighbourhood risks if the seller knew and the condition could render the premises unfit or pose a safety hazard to the property If you need help reviewing property disclosure forms, assessing disclosure duties, or evaluating options like damages or rescission, paralegals and property management support through Mole Legal Services can help you understand the latent defect risk and next steps in plain language, call (647) 709-5157.
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Understanding What Constitutes As a Latent Defect
Within the ongoings of a real estate sale process, a seller must disclose to the buyer proper detail of a dangerous condition or other fact may make the premises unfit for habitation where such details are known to the seller. This requirement applies whether the condition is intrinsic or extrinsic.
Note: Please contact Mole Legal Services by phone at: (647) 709-5157 to discuss any specific questions that you may have.
The Law
A latent defect differs from a patent defect in terms of visibility. A patent defect is visibly detectable during an inspection, whereas a latent defect remains concealed. This distinction is provided within the cases of:
[66] A latent defect is some fault in the structure of property that is not readily apparent during a routine inspection. A patent defect is observable or discoverable by the exercise of due diligence. See: Tony’s Broadloom and Floor Covering Limited v. NMC Canada Inc. (1996), 1996 CanLII 680 (ON CA), 31 O.R. (3d) 481, at pp. 486-7 (Ont. C.A.).
[23] A patent defect is defined in a decision of the Ontario Court of Appeal in McCallum v. Dean, [1956] O.J. No. 345, at para. 5, as follows:
Patent defects are such as may be discovered by inspection and ordinary vigilance on the part of the purchaser, and with respect to them the primary rule is caveat emptor.
[24] A succinct definition of latent defect is set forth in the decision of LaForme J. in Swayze v. Robertson, [2001] O.J. No. 968, at para. 27:
A ‘latent defect’ as it relates to the case at bar is in effect some fault in the structure that is not readily apparent to an ordinary purchaser during a routine inspection. And ordinarily, if a vendor actively conceals a latent defect, the rule of caveat emptor no longer applies and the purchaser is entitled, at their option, to ask for a [rescission] of the contract or compensation for damages.
[13] A defect which is readily apparent to someone exercising reasonable care in their inspection of a property is said to be patent. A defect which is not readily apparent on such an inspection is said to be latent.
25. Latent defects are not usually discoverable by a prudent buyer making an ordinary inspection of the property because they are hidden behind or beneath immoveable surfaces in the home. ...
The distinction between a patent and latent defect is described by Ron Milner Stonham in his text, The Law of Vendor and Purchaser (Australia: The Law Book Co. of Australia Pty. Ltd., 1964) at p. 229:
A patent defect is a defect which a purchaser is likely to discover if he inspects the property with ordinary care. A latent defect is one which a purchaser, inspecting the property with ordinary care, would not be likely to discover. Whether a defect is patent or latent is a question of degree. . . . It is not enough that there exists on the land an object of sense, that might put a careful purchaser on inquiry; but, in order to be a patent defect, the defect must either be visible to the eye, arise by necessary implication from something visible to the eye.
(Citations omitted)
Similarly, in 42 Halsbury's Laws of England, 4th ed. 1983, s. 51, under the subheading "Disclosure by the Vendor -- Defects of Quality" it is stated at p. 47:
Defects of quality may be either patent or latent. Patent defects are such as are discoverable by inspection and ordinary vigilance on the part of the purchaser, and latent defects are such defects as would not be revealed by any inquiry which a purchaser is in a position to make before entering into the contract for purchase.
Intrinsic or Extrinsic
Although a latent defect is, generally, an invisible or undetectable concern that is intrinsic to the property, meaning physically problematic, a latent defect may be an extrinsic concern being something that is external from the property. The possibility of either an intrinsic latent defect or an extrinsic latent defect was confirmed in law within the case of:
[144] The defendants submit that whatever danger the connection of the Burlington property to Mr. Pleterski posed, that risk cannot be a latent defect in the Burlington property because it was extrinsic to the structure and its lands. I do not accept this submission, which is contrary to the weight of the case law.
[145] In Dennis v. Gray, the plaintiffs, a couple with young children, purchased a house and subsequently sued the defendant sellers for failing to disclose the fact that a person convicted under the child pornography provisions of the Criminal Code lived across the street.[42] The defendant seller moved under rule 21.01(1)(b) to dismiss the purchaser’s action on the basis that it was plain and obvious that such a fact does not, in law, amount to a latent defect of such a nature that is must be disclosed to a purchaser. Justice Hoy (as she then was) dismissed the motion and held it was not plain and obvious that the claim must fail, even though the danger at issue in that case did not originate from within the structure or property purchased by the plaintiffs.
[146] In Sevidal v. Chopra, the plaintiffs agreed to purchase a house from the defendants.[43] At the time the parties signed the agreement of purchase and sale, the defendants knew but did not disclose that radioactive material had been discovered in the yards and houses in the neighbourhood. Justice Oyen had no trouble concluding that the presence of radioactive material in the surrounding neighbourhood was a latent defect:
To return to the case before me, and dealing first with the issue of whether the Chopras should have disclosed the existence of radioactive material in the area prior to entering into the agreement of purchase and sale, I find, based on the principles enunciated in the cases to which I have referred, that they should have. They knew about the potentially dangerous latent defect prior to the signing of the agreement. The fact that at the time the agreement was signed the latent defect was only known to be on property in the immediate area and not on the property itself, provides no excuse for non-disclosure. The Chopras were guilty of concealment of facts so detrimental to the Sevidals that it amounted to a fraud upon them, and, therefore, the Chopras are liable in deceit.[44]
[147] Although Oyen J. ultimately based his finding in deceit, the fact that the radioactivity was only known to be in the neighbourhood, and not on the property, at the time the agreement of purchase and sale was signed, was no impediment to finding it to be a latent defect.
[148] In Godin v. Jenovac, the defendant sellers failed to disclose the existence of a nearby landfill site, which had been used as a garbage dump.[45] The former garbage dump was at least two or three blocks away from the property at issue. Justice McCombs held that the presence of the garbage dump was a latent defect that the sellers would have had to disclose if it posed a health hazard. As there was no evidence that the proximity of the garbage dump posed a health hazard or other danger, McCombs J. held that the sellers were under no general duty to disclose the proximity of the landfill site.
[149] Based on these authorities, in my view, the law does not require that the source of the latent defect be located within the structure or property at issue. As long as the fact known by the seller (nearby radioactive waste, a convicted child pornographer across the street, a garbage dump that poses a health risk) affects the subject property, that is sufficient.
[150] In my view, the ongoing safety risk at the Burlington property was a latent defect. Not only did 653 Ontario not disclose the latent defect, it concealed the latent defect by representing that the house was private and secure.
In the 1000425140 Ontario Inc. case, a home was sold for over $8,000,000 to NBA basketball player Shai Gilgeous-Alexander. Shortly thereafter, it was discovered that the home was previously occupied by Aiden Pleterski. The previous occupancy by Aiden Pleterski, also known as "The Crypto King" and who is criminally accused of defrauded investors of tens of millions of dollars, resulted in unsavoury persons attending at the home in attempts to locate Mr. Pleterski. As per the 1000425140 Ontario Inc. case, it was deemed that the danger posed by unsavoury persons attending at the home in search of Mr. Pleterski qualifies as an extrinsic latent defect affecting the property.
CBC News Article
Click Here November 2 2023 | Read In About Three Minutes
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